Resumed from 12 November. The Deputy Chair of Committees (Hon Martin Aldridge) in the chair; Hon Sue Ellery (Leader of the House) in charge of the bill.
Clause 6: Objects of Act —
Progress was reported on the following amendment moved by Hon Alison Xamon —
Page 6, after line 22 — To insert —
(2) Without derogating from subsection (1), it is not the intention of Parliament that the powers in this Act be used in a manner that would diminish the freedom of persons in this State to participate in advocacy, protest or dissent that is not intended —
(a) to cause a person’s death;
(b) to cause serious physical harm to a person;
(c) to endanger a person’s life, other than the life of the person participating in the advocacy, protest or dissent; or
(d) to create a serious risk to the health or safety of the public.
Hon ALISON XAMON: During the course of my second reading contribution, I made the point that the bill explicitly protects one form of communication for governmental and political matters, and that is the defence in clause 9 that relates to necessary consorting in the context of industrial action by members of registered unions for the purposes of a union’s business. But as I mentioned during the course of my second reading contribution, my concern is that there is no defence or exclusion in the bill for any other form of advocacy, protest and dissent. Ordinarily in other similar legislation—I will make reference to that in a moment—in addition to industrial action, this type of action is usually expressly protected by Western Australian legislation, so to not have that as an explicit inclusion in this bill is quite a substantial departure from what we consider to be usual. The Criminal Organisations Control Act 2012 provides a double protection. Section 4 states —
... it is not the intention of Parliament that the powers in this Act be used in a manner that would diminish the freedom of persons in this state to participate in advocacy, protest, dissent or industrial action.
It goes on to set out a range of defences, which include lawful political protest and lawful industrial action, so it actually contemplates both forms of activity. The out-of-control gatherings provisions in the Criminal Code also refer to a gathering that is primarily for the purposes of political advocacy, protest or industrial action as an explicit exclusion. All three of our terrorism laws—the Terrorism (Commonwealth Powers) Act 2002, the Terrorism (Extraordinary Powers) Act 2005 and the Terrorism (Preventative Detention) Act 2006—were introduced by a Labor government, and all explicitly excluded from their scope advocacy, protest, dissent or industrial action. It goes on to say that this is provided that it is not intended to cause a person’s death or serious physical harm et cetera.
Previous legislation has specifically recognised, upheld and acted explicitly to ensure Western Australia’s freedom of communication on governmental and political matters. It is my understanding that the reason that this bill seeks to depart from this tradition and does not include the scope of this activity is that there is a concern that it might not be able to be drafted narrowly enough to prevent convicted offenders from consorting for criminal purposes under the cover of a protest. However, that argument does not seem to have been a problem in the drafting of the other 10 defences. Certainly, the defence relating to industrial action is drafted narrowly, but other more broadly worded defences in the bill permit consorting that is necessary for a range of purposes. In addition, every defence in the bill contains three protections against the defence being misused. The onus is on the accused to start with, because it is a defence. The consorting must be necessary to the specified purpose; and, if it is statutorily deemed to not be necessary, the defence does not apply if it is shown that any of the purposes for consorting were to avoid the operation of an unlawful consorting notice or were related to criminal activities. Therefore, I do not think that including a defence for advocacy, protest or dissent will open the door to circumventing the defences to any greater degree than already exists within the bill. I suspect that the problem relates to priority. I am concerned that advocacy, protest and dissent is simply not being given the same level of significance, so we are not valuing its statutory protection. But I think that advocacy, protest and dissent really do matter, just as I also support industrial action. This omission needs to be seriously addressed. It is quite important that we maintain some sort of consistency with similar types of legislation that contemplate large gatherings for a range of reasons, and I ask members to seriously consider supporting this amendment.
Comments and speeches by various members
Amendment put and negatived.
Clause put and passed.
Comments and speeches by various members
The DEPUTY CHAIR: Order, member! Noting the time, I shall leave the chair until the ringing of the bells.
Committee interrupted, pursuant to standing orders.